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Removing a State Criminal Case to Federal Court

Posted on March 29, 2022 in

If you are facing criminal charges in Massachusetts and your case has been filed with the state courts, it may benefit you to have it removed to the federal court. This action is permitted under 28 U.S. Code §1443, in certain circumstances. It is up to you as the defendant to convince the federal court to accept your case. Discuss this option with your criminal defense lawyer to find out if it is right for you.

Should You Remove Your Case to Federal Court?

Removal of a state criminal case to the federal court can have several benefits. In general, federal courts have better-developed case laws and treat defendants in a more consistent and predictable manner. Depending on the judge at the state court level, the federal court judge may be a better option. In addition, the pool of available jurors may be more favorable, as a federal district covers a wider demographic. Finally, federal court cases typically move faster than in the state courts – reducing the overall cost of litigation.

Grounds for Case Removal

If your criminal defense attorney believes that removing your state case to federal court is in your best interest, he or she can help you establish the grounds for your request. Federal law requires a plain statement of the grounds for removal to be given in the initial notice. The grounds available are:

  • Anyone who is denied or cannot enforce in a state court a right under any law providing for the equal civil rights of citizens of the U.S., or of all people within the jurisdiction thereof.
  • For any act under color of authority derived from a law providing for equal rights or for refusing to perform any act on the grounds that it would not be consistent with such law.
  • At any time prior to trial in the state court, if the case is against a member of the armed forces regarding an act done while he or she was under the color of office or status.

A defendant can elect to remove a case if the plaintiff could have filed the case in the federal court to begin with. The defendant must prove that the federal court has subject-matter jurisdiction. If a federal judge believes that jurisdiction in the federal court has not been properly established by the defendant, he or she can remand the case back to the state court. A plaintiff can also file a motion to have the case remanded to state court if he or she doesn’t believe federal jurisdiction applies. In general, however, once a state criminal case has been removed to the federal court, it will remain there until it has been resolved.

How to File a Request to Remove Your Case

Note that only a defendant has the ability to remove a state case to the federal court; a plaintiff cannot do so once he or she files in a state court. Furthermore, the state court has no say in whether or not a case is removed. To initiate this action, you or your attorney must take the following steps:

  1. Prepare the required documents. Several legal documents must be filed at both the state and federal court levels. These forms include the Notice of Removal, which must be made within 30 days of the state court arraignment hearing. The notice must state the grounds for the removal and include a complete copy of all documents from the state court.
  2. Notify the state court. Once you have filed your notice with the federal court, you must let the state court know that your case has been transferred. You can do this by filing a Notice of Filing of Notice of Removal in the state court. Taking this action effectively removes jurisdiction from the state court.
  3. Defend the removal. Anticipate a motion to remand, which is filed by the plaintiff to request that the federal court remand the case back to state court. Your lawyer can help you prepare a defense justifying the grounds for the removal against a motion to remand.

The steps to remove a state criminal case to the federal court are not necessarily difficult. However, various issues may arise to challenge your ability to remove your case. All of these factors must be accounted for, as there is no room to make mistakes during a criminal case. When your future is at stake, hire an experienced Middlesex County criminal defense lawyer to assist you with these legal processes.